By Lisa Milam-Perez, J.D. A nuclear plant employee did not engage in protected activity within the meaning of the Energy Reorganization Act’s whistleblower provisions when he argued with a colleague over the proper security-level designation to be given an internal “condition report” over a breach of safety protocol. The employer already knew of the potential safety violation and had already launched its internal procedures for remediating the issue; the employee had merely argued that the report should have been afforded a higher-level designation, but then relented and “let it go.” This was not protected whistleblower activity, a divided Ninth Circuit held, affirming summary judgment to the employer. Judge Graber disagreed, arguing that the majority had improperly narrowed the scope of the statutory protections available under the statute (Sanders v. Energy Northwest, February 12, 2016, Leavy, E.). The employee worked for the municipal power plant as a maintenance manager, overseeing maintenance contractors and administering temporary staffing contracts. He was discharged after nearly 20 years on the job, ostensibly because he improperly approved temporary staffing per diem and travel payments to the father of his daughter’s child. However, the employee contended he was discharged because of his protected activity. A “bravo” or a “Charlie”? As a Nuclear Regulatory Commission licensee, the employer was required to maintain an internal system for documenting potential safety violations. To that end, employees are to create “condition reports” whenever safety procedures may have been violated. A “condition review group,” comprised of managers from various departments, then meets and determines the property severity level of a given report: “Alpha” (most severe), “Bravo,” “Charlie,” or “Delta” (least). When the security department received a condition report about a worker who was fired without turning in his access badge within the seven-day timeframe set forth in the company’s “access authorization program” (yet another NRC mandate), the employee disagreed vehemently with the review group’s decision to designate the report as a “Charlie.” He felt it was a “Bravo,” and he got into a heated dispute with the security department manager about the issue. It was the second feud between them in recent weeks, and they were told to go resolve their issues outside the meeting. The next day, the employee registered his disapproval with the plant manager, emphatically expressed his disagreement. “I believe that they’re lower standards than what we’re expecting from the plant,” he said. “If you guys want to let it go as a Charlie, I’ll let it go as a Charlie, but I’m not in agreement.” Almost a year later, contending that his objection to the “Charlie” designation amounted to protected activity, he filed a whistleblower complaint with the Department of Labor, then filed suit in district court alleging a violation of the Energy Reorganization Act. The statute prohibits employers from discharging or discriminating against employees for notifying an employer of a violation, initiating an enforcement proceeding, or testifying in a safety or enforcement proceeding (among other enumerated activities). A catch-all provision protects employees who engage “in any other action to carry out the purposes of this chapter.” No whistleblower activity. The Ninth Circuit held the employee’s objection to the internal designation of the safety threat did not amount to protected activity. He did not generate the condition report at issue and he had no independent knowledge of an underlying safety violation prior to the creation of the report. The employer already new of the underlying safety breach and had begun to address it; he did not allege a cover-up or of neglect arising from the “Charlie” label that he so strenuously opposed. In the end, his conduct amounted to “a single expression of a difference of opinion,” and he ultimately relented. It lacked a sufficient nexus to a concrete, ongoing safety concern, and so was not “an objection to a specific practice, policy, or occurrence that he reasonably believed was a nuclear safety issue.” Because his conduct fell outside the scope of the Act’s protection, summary judgment was proper. Dissent. The majority noted that the underlying safety problems at issue here had not been “overlooked, neglected, or concealed by management,” and that the complained-of violations were not “concrete [and] ongoing” issues. Yet the statute does not require that management overlook, neglect, or conceal a safety issue before the statutory protection against retaliation can be invoked, Judge Graber pointed out in dissent. Nor does it require that the safety concern be “concrete and ongoing” when the complaint is made. The Energy Reorganization Act’s whistleblower provision “casts a wide net,” as it expressly forbids discrimination against an employee who engages “in any other action to carry out the purposes of this chapter,” she noted, and in her view, by insisting on “a faster or more complete solution to a safety problem about which the employer is aware,” the employee engaged in conduct that fell squarely within the whistleblower provision’s “catch-all” clause. She also argued that the majority had erred in resolving the factual issues against the employee, as non-moving party, on the employer’s summary judgment motion.
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